HIRALAL SINGHA Vs. TRIPURA CHARAN RAY

JUDGEMENT

(1.) This is an appeal by the first defendant in a suit for house rent. To appreciate the question of law which calls for decision, it is necessary to state briefly the undisputed facts. The house originally belonged to Kanailal Ghosh, who transferred it on the 10th October, 1893, to Dayamoyee Dasee and her brother s son Hara Chand Jalal. The purchasers, while in possession of the house, leased it to the first, defendant on the 1st January, 1901. Shortly after, Dayamoyee Dasee died, on the 25th February, 1901. On the 20th July, 1908, Hara Chand Jalal transferred the house to the plaintiff, on the allegation that, upon the death of his father s sister, Dayamoyee Dasee, he had taken by inheritance her half share of the property and had thus become full owner thereof. On the 8th September, 1908, the plaintiff commenced the present suit for rent. Besides other defences not material at this stage, the first defendant resisted the claim on the plea that Dayamoyee Dasee was a prostitute, and that, consequently, Hara Chand Jalal, though her brother s son, was not her heir under the Hindu law. This contention has been overruled by both the Courts below. The evidence shows that Dayamoyee Dasee was a married woman, that after the death of her husband she became a, prostitute, and that she was the mistress of one Bose. The house was apparently purchased by her with her own earnings, and, throughout this litigation, it has been assumed that it was her stridhan property. This assumption is in accord with the accepted view of the Bengal school of Hindu law, namely, that the term stridhan has no technical meaning or, in the words of Jimutavahana, "that alone is stridhan which she has power to give sell or use, independently of her husband s control." Dayabhaga, Chapter IV, Section I, paragraph 18: Brij Indar Bahadur Singh v. Ranee Janki Koer (1877) L. R. 5 I. A. 1 : 1 C.L.R. 318. The substantial question of law which, consequently, here requires examination may be formulated in these terms: Does the stridhan property of a Hindu woman who has adopted the life of a prostitute pass upon death to her brother s son as an heir under the Bengal school of Hindu law?

(2.) It cannot be disputed that if a Hindu woman, governed by the Bengal school, is respectable, her stridhan property passes upon her death to her brother s son, in the absence of nearer heirs. This position is established by Jimutavabana in the Dayabhaga (Chapter IV, Section III, paragraph 37). Having pointed out in paragraphs 35 and 36 that the text of Vrihaspati mentioned in paragraph 31 relates merely to the right of succession, and is not declaratory of the order of inheritance, he observes that the text is "expressive of the strength of the fact (of the benefits conferred)" and then proceeds to develop the order of succession in paragraph 37 in the following terms: This then is the order of succession according to the various degrees of benefit to the owner of the property from the oblation of food at obsequies. In the first place, the husband s younger brother is entitled to the woman s property; for he is a sapinda, and presents oblations to her, to her husband and to three persons to whom oblations were to be offered by her husband. After him the son either of her husband s elder or of his younger brother, is heir to the separate property of his uncle s wife, for he is a Sapinda, and presents oblations to her, to her husband and to two persons to whom oblations were to be offered by her husband. On failure of such, the sister s son, though he is not a sapinda, inherits the separate property left by his mother s sister, because he presents oblations to her and to three persons (her father and the rest) to whom oblations would have been offered by her son. In default of him, the son of her husband s sister (for it is reasonable, since the husband has a weaker claim than the son, that persons claiming under them should have similar relative precedence) is heir to the property of his uncle s wife, because he presents oblations to three persons to whom they were to be offered by her husband, and also presents oblations to her and to her husband. On failure of him, the brother s son is the successor to his mint s property, for he presents oblations to the father, to her grandfather, and to herself. If there be no nephew, the husband of her daughter is heir to his mother-in-law s property, since he presents oblations to his mother-in-law and father-in-law.

(3.) The language used in this passage does not restrict its application to the stridhan property of a respectable woman only; the language is comprehensive enough to include stridhan property of a prostitute, who does not by the-mere fact of lapse into prostitution cease to be a Hindu or to be subject to the rules of Hindu law. (Mitakshara on Yajnayalkya If, 290, Setlur s edition, page 1105; Girish Chandra Tarkalankar s Translation, page 121). The question therefore arises whether the rule laid down in the Dayabhaga, Chapter IV, Section III, paragraph 37, should be held inapplicable to the case of succession to the stridhan property of a prostitute, either because the reason on which the rule is founded ceases to be applicable in the case of a prostitute, or because, upon general principles of Hindu jurisprudence, the rule should be restricted in its application only to stridhan property of a respectable woman. In so far as the reason for the rule is concerned. Jimutavahana states that the brother s son is the successor to his aunt s property because he presents oblations to the father, to her grandfather and to herself. It is plain that the capacity to present oblations to the father and the grandfather of the aunt is not dependent upon her character; the claimant offers such oblations because they are the father and the grandfather of his own father. In so far, therefore, as capacity to present oblations to the father and the grandfather of the woman is concerned, the claimant possesses that qualification, whether or not his aunt is respectable. But in so far as capacity to present oblations to herself is concerned, it may be argued that when she lapses into "prostitution the claimant loses that capacity. This, in fact, is the line of argument adopted by the appellant as based upon general principles of Hindu jurisprudence. The contention in essence is that when a Hindu woman lapses into prostitution, she is civilly dead, and that in the eye of the law the tie which connected her to any person through her father, mother, husband or children is completely severed; in other words, so far as her relations are concerned, the position is precisely the same as if she had suffered physical death. To establish this position, the appellant has been constrained to argue that when a woman lapses into prostitution she becomes an outcast, and that when a person has become an outcast, whether a man or a woman, the kinsmen mast perform the same ceremonies as at the time of death.